BOUNDARY  LINE 

w 


BETWEEN 


Nicaragua™ Costa  Rica 


AWARD  OF 

GENERAL  E.  P.  ALEXANDER, 

Engineer  -  Arbitrator. 

AWARD  No.  4. 


SHORE  LINE  OF  LAKE  NICARAGUA. 


PRE88E8  BRAID  *  HUTTON,  6AVANNAH,  OA.,  U.  8.  A. 


BOUNDARY  LINE 

- BETWEEN - 

Nicaragua  and  Costa  Rica. 


AWARD  OP  ENGINEER- ARBITRATOR. — No.  4. 


San  Juan  del  Norte,  July  26th,  1899. 

To  the  Boundary  Commissions  of 

Costa  Rica  and  Nicaragua  : 

Gentlemen  : 

As  the  arbitrator  of  whatever  points  of  difference 
may  arise  between  your  two  bodies,  in  tracing  and 
marking  the  boundary  line  between  the  Republics  you 
represent,  I  am  called  upon  to  decide  the  following 
question. 

What  level  of  its  waters  shall  be  taken  to  determine 
the  shore  line  of  Lake  Nicaragua,  paralled  to  which, 
and  two  miles  distant  therefrom,  the  boundary  line 
must  be  traced,  from  near  the  San  Juan  river  to  the 
Sapoa  ? 

It  will  facilitate  discussion  to  define,  in  advance,  the 
principal  levels  which  must  be  frequently  referred  to. 
Under  the  influence  of  rainy  seasons  of  about  seven 
months,  and  dry  seasons  of  about  five,  the  level  of  Lake 
Nicaragua  is  in  constant  fluctuation.  We  shall  have  to 
discuss  five  different  stages. 

1st.  Extreme  high  water;  the  level  reached  only  in 
years  of  maximum  rainfall,  or  some  extraordinary 
conditions. 

2nd.  Mean  high  water;  the  average  high  level  of 
average  years. 


588185 


3rd.  Mean  low  water;  the  average  low  level  of  aver¬ 
age  years. 

4th.  Extreme  low  water;  the  lowest  level  reached  in 
years  of  minimum  rainfall,  or  other  extraordinary 
conditions. 

5th.  Mean  water;  the  average  between  mean  high 
water  and  mean  low  water. 

The  argument  presented  to  me  in  behalf  of  Nicaragua 
claims  that  the  level  to  be  adopted  in  this  case  should  be 
the  first  level  named,  to-wit:  extreme  high  water.  It 
argues  that  this  line,  and  this  line  alone  is  the  true  limit 
of  what  the  argument  calls  the  ‘‘bed  of  the  lake.” 
Costa  Rica  claims  the  adoption  of  the  third  level,  to- 
wit:  mean  low  water.  This  is  argued  principally  upon 
two  grounds:  First,  it  is  shown  by  a  great  number  of 
legal  decisions  that,  in  most  states,  all  water  boundaries 
are  invariably  held  to  run  at  either  extreme  or  mean 
low  water.  Second,  it  is  claimed  that,  in  case  of  any 
doubt,  Costa  Rica  is  entitled  to  its  benefit,  as  she  is  con¬ 
ceding  territory  geographically  hers. 

I  will  begin  with  Costa  Rica’s  first  argument.  The 
equity  of  adopting  a  low  water  line  in  the  case  of  all 
water  boundaries  is  readily  admitted,  even  though  in¬ 
stances  of  contrary  practice  exist. 

Between  all  permanent  lands  and  permanent  waters 
usually  runs  a  strip  of  land,  sometimes  dry  and  some¬ 
times  submerged.  We  may  call  it,  for  short,  semi-sub¬ 
merged.  Its  value  for  ordinary  purposes  is  much  di¬ 
minished  by  its  liability  to  overflow,  but,  as  an  adjunct 
to  the  permanent  land,  it  possesses,  often,  very  great 
value.  If  the  owner  of  the  permanent  land  can  fence 
across  the  semi-submerged  he  may  save  fencing  his 
entire  water  front.  He  also  can  utilize  whatever  agri- 


Southern  Pamphlets 
Hare  Book  Collectior 


8 


cultural  value  may  be  in  the  semi -submerged  land  in  dry 
seasons.  Both  of  these  values  would  be  destroyed  and 
wasted  if  the  ownership  were  conferred  upon  the  owner 
of  the  water.  Therefore  equity  always,  and  law  gen¬ 
erally,  confers  it  upon  the  owner  of  the  permanent  land. 

I  recognized  and  followed  this  principle  in  my 
award,  No.  3,  where  I  held  that  the  boundary  line  fol¬ 
lowing  the  right  bank  of  the  San  Juan  river,  below  Cas¬ 
tillo,  follows  the  lowest  water  mark  of  a  navigable  stage 
of  river.  And,  if  now  the  lake  shore  were  itself  to  be 
the  boundary  of  Costa  Rica,  I  would  not  hesitate  to  de¬ 
clare  that  the  semi-submerged  land  went  with  the  per¬ 
manent  land  and  carried  her  limits  at  least  to  the  mean 
low  water  line. 

But  this  case  is  not  one  of  a  water  boundary  ;  nor  is 
it  at  all  similar,  or  “on  all  fours”  with  one,  for  none  of 
the  equities  above  set  forth  have  any  application.  It  is 
a  case  of  rare  and  singular  occurrence  and  without  prece¬ 
dent,  within  my  knowledge.  A  water  line  is  in  question, 
but  not  as  a  boundary.  It  is  only  to  furnish  starting 
points  whence  to  measure  off  a  certain  strip  of  territory. 
Clearly  the  case  stands  alone,  and  must  be  governed 
strictly  by  the  instrument  under  which  it  has  arisen. 
That  is  the  Treaty  of  1858  ;  and  its  language  is  as  fol¬ 
lows  : 

“Thence  the  line  shall  continue  towards  the  river 
“Sapoa,  which  discharges  into  the  Lake  of  Nicaragua, 

“following  a  course  which  is  distant  always  two  miles 
“from  the  right  bank  of  the  river  San  Juan,  with  its 

“sinuosities,  up  to  its  origin  at  the  lake,  and  from  the 
“  right  bank  of  the  lake  itself,  up  to  the  said  river  Sapoa, 
“where  this  line  parallel  to  the  said  banks  will  termin- 


“  ate.” 


4 

The  principles  upon  which  the  language  and  intent 
of  treaties  are  to  be  interpreted  are  well  set  forth  in  the 
Costa  Rican  argument  by  many  quotations  from  eminent 
authors.  All  concur  that  words  are  to  be  taken  as  far 
as  possible  in  their  first  and  simplest  meanings — “in 
their  natural  and  obvious  sense,  according  to  the  general 
use  of  the  same  words  ” — “  in  the  natural  and  reasonable 
sense  of  the  terms” — “in  the  usual  sense,  and,  notin 
any  extraordinary  or  unused  occupation.” 

We  must  suppose  that  the  language  of  the  treaty 
above  quoted  suggested  to  its  framers  some  very  definite 
picture  of  the  lake  with  its  banks,  and  of  the  two-mile 
strip  of  territory.  It,  evidently,  seemed  to  them  all  so 
simple  and  obvious  that  no  further  words  were  necess¬ 
ary.  Let  us  first  call  up  pictures  of  the  lake,  at  differ¬ 
ent  levels,  and  see  which  seems  the  most  natural,  ob¬ 
vious  and  reasonable. 

The  very  effort  to  call  up  a  picture  of  the  lake,  at 
either  extreme  high  water  or  extreme  low  water,  seems 
to  me  immediately  to  rule  both  of  these  levels  out  of 
further  consideration.  Both  seem  unnatural  condi¬ 
tions,  and  I  must  believe  that,  had  either  been  intended, 
additional  details  would  have  been  given. 

Next ;  is  the  mean  low  water  mark  the  first,  most 
obvious  and  natural  picture  called  up  by  the  expression, 
“  the  bank  of  the  lake  ?”  It  seems  to  me  decidedly  not. 
During  about  eleven  months  of  the  year  this  line  is  sub¬ 
merged,  invisible  and  inaccessible.  It  seems  rather  a 
technical  line  than  a  natural  one.  The  idea  of  a  bank 
is  of  water  limited  by  dry  land  with  some  elements  of 
permanency  about  it.  Even  during  the  brief  period 
when  the  line  is  uncovered,  the  idea  of  it  is  suggestive 
far  more  of  mud  and  aquatic  growths  than  of  dry  land 
and  forest  growths. 


5 

To  my  mind,  the  natural  simple  and  obvious  idea  of 
the  bank  of  a  lake,  in  this  climate,  is  presented  only  by 
the  line  of  mean  high  water.  Here  we  would  first  find 
permanent  dry  ground  every  day  of  an  average  year. 
Here  an  observer,  during  every  annual  round  of  ordinary 
seasons,  would  see  the  water  advance  to  his  very  feet 
and  then  recede,  as  if  some  power  had  drawn  the  line 
and  said  to  the  waters,  ‘‘hitherto  shalt  thou  come  but 
no  further.”  Here  the  struggle  between  forest  growths 
and  aquatic  vegetation  begins  to  change  the  landscape. 
Here  lines  of  drift,  the  flotsam  and  jetsam  of  the  waves 
naturally  suggest  the  limits  of  the  “bed  of  the  lake.” 

One  level  of  the  lake  remains  for  discussion,  the  mean 
level,  or  average  of  all  waters.  In  a  different  climate, 
where  the  rainfall  is  more  uniformly  distributed 
throughout  the  year,  the  mean  high  water  and  mean 
low  water  lines  with  all  their  respective  features,  would 
approach  each  other,  tending  to  finally  merge  in  the 
line  of  mean  water.  But,  where  wet  and  dry  seasons 
prevail,  as  in  the  present  case,  the  line  of  mean  water 
is  destitute  of  all  obvious  features,  and  is  submerged  for 
many  months  of  the  year.  It  is  purely  a  technical,  and 
not  a  natural  line,  and  is  not  to  be  understood  where 
not  expressly  called  for. 

In  argument  against  Nicaragua’s  claim  of  the  ex¬ 
treme  high  water  line,  Costa  Rica  appeals  to  the  general 
custom  of  geographers  and  scientific  men  in  making 
ordinary  topographical  maps,  who  never  adopt  the  ex¬ 
treme  lines  of  overflows  for  the  outlines  of  lakes.  This 
argument  of  general  custom  has  great  weight,  but  it  is 
equally  against  Costa  Rica’s  claim  for  the  mean  low 
water  line.  Wherever  wet  and  dry  seasons  prevail, 
general  custom  treats  mean  high  water  as  the  normal 


6 

state,  always  to  be  understood  where  no  other  level  is 
expressed,  and  its  line  is  assumed  as  the  lake  boundary 
in  all  ordinary  topographical  maps.  Two  quotations 
from  Commander  Lull’s  report  of  his  Nicaraguan  Canal 
survey  will  illustrate.  (Rep.  Sec.  Navy  1873,  p.  187.) 

‘‘In  a  survey  made  by  Mr.  John  Baily,  many  years 
“since,  that  gentleman  professed  to  have  found  a  pass 
“with  but  56  feet  above  the  lake  level,  but  the  most  of 
“his  statements  are  found  to  be  entirely  unreliable, 
“  *  *  *  For  example,  he  finds  Lake  Nicaragua  to 
“be  121  feet  above  mean  tide  in  the  Pacific,  while  the 
“true  difference  of  level  is  but  107  feet.”  (Ibid.  p.  199.) 
“The  surface  of  Lake  Nicaragua  is  107  feet  above  mean 
tide  in  either  sea.” 

From  comparison  of  this  level  with  the  levels  found 
by  other  surveys,  there  is  no  question  that  this  figure 
was  Lull’s  estimate  of  mean  high  water  as  shown  by  his 
line  of  levels. 

From  every  consideration  of  the  lake,  therefore,  I  am 
driven  to  conclude  that  the  shore  line  of  the  lake,  con¬ 
templated  in  the  treaty,  is  the  mean- high-water  line. 

I  am  led  to  the  same  conclusion,  also,  from  the  stand¬ 
point  of  the  two-mile-wide  strip  of  territory. 

The  treaty  gives  no  intimation  as  to  the  purpose  of 
this  concession,  and  we  have  no  right  to  assume  one, 
either  political  or  commercial.  We  have  only  to  observe 
the  two  condition  put  upon  the  strip  in  the  treaty. 
Under  all  ordinary  conditions  it  must  be  land,  and  two 
miles  wide.  This  would  not  be  the  case  if  we  adopted 
the  line  of  either  mean-low-water,  or  mean-water.  In 
the  former  case  the  strip  would  be  too  narrow  for  about 
eleven  months  of  an  ordinary  year ;  in  the  latter  case 
for  about  five  months. 


7 

Without  doubt,  then,  I  conclude  that  mean-high- 
water  mark  determines  the  shore  of  the  lake ;  and  it 
now  remains  to  designate  that  level,  and  how  it  shall  be 
found. 

Several  surveys  of  the  proposed  Nicaraguan  Canal 
route,  beside  that  of  Commander  Lull  above  quoted, 
have  been  made  within  the  last  fifty  years.  Each  found 
a  certain  mean  high  level  of  the  lake,  and  it  might  seem 
a  simple  solution  to  take  an  average  of  them  all.  But, 
as  each  adopted  its  own  bench-mark  on  the  ocean,  and 
ran  its  own  line  of  levels  to  the  lake,  I  have  no  means 
of  bringing  their  figures  to  a  common  standard.  It 
seems  best,  therefore,  to  adopt  the  figures  of  that  one 
which  is  at  once  the  latest  and  most  thorough,  which 
has  enjoyed  the  benefit  of  all  of  the  investigations  of  all 
of  its  predecessors,  and  whose  bench-marks  on  the  lake 
are  known  and  can  be  referred  to.  That  is  the  survey, 
still  in  progress,  under  the  direction  of  the  U.  S.  Canal 
Commission.  Its  results  have  not  yet  been  made  pub¬ 
lic,  but,  by  the  courtesy  of  Bear- Admiral  J.  G.  Walker, 
President  of  the  Commission,  I  am  informed  of  them  in 
a  letter  dated  July  10th,  1899,  from  which  I  quote  : 

“In  reply  I  am  cabling  you  to-day,  as  follows:  ‘Alex¬ 
ander,  Grey  town,  Six;’  the  six  meaning,  as  per  your 
“letter,  106.0  as  mean  high  level  of  lake.  This  eleva¬ 
tion  of  106.0  is,  to  the  best  of  our  knowledge,  (Mr. 
“Davis,  our  hydrographer)  the  mean  high  water  for  a 
“number  of  years.  *  *  * 

“The  highest  level  of  the  lake  in  1898  was  106.7,  last 
“of  November.  The  elevation  of  our  bench  mark  on 
“inshore  end  of  boiler  at  San  Carlos  is  109.37  *  *  *” 

A  complete  copy  of  this  letter  will  be  handed  you; 
and  also  blue-prints  of  the  maps  made  by  the  Com  mis- 


8 

sion  of  the  lower  end  of  the  lake,  which  may  facilitate 
your  work. 

As  this  Commission  is  the  highest  existing  authority, 
I  adopt  its  finding,  and  announce  my  award  as  follows  : 

The  shore  line  of  Lake  Nicaragua,  at  the  level  of  106.0 
feet,  by  the  bench  marks  of  the  United  States  Nicaragua 
Canal  Commission,  shall  be  taken  as  the  bank  of  said 
lake  referred  to  in  the  treaty  of  1858. 

I  am,  gentlemen,  very  respectfully,  your  obedient 
servant, 

E.  P.  ALEXANDER, 

Engineer -Arbitrator. 


